MPAA's Actions, Emails Show That They're Doing Everything Possible To Screw Over The Blind

from the how-can-they-deny-it? dept

Back in April, we pointed out that the MPAA was working overtime to screw over the blind in the negotiations for a WIPO treaty to make it easier for the blind and those with vision impairment to access works for the blind. They'd already succeeded in screwing over the deaf by getting them excluded from the treaty, despite it initially being for both. Over the past two months, however, the MPAA tried to go on a charm offensive going on and on about how much they really, really liked blind people and wanted to help get a treaty passed, even somehow getting the National Federation for the Blind to throw their own members under the bus by issuing a joint statement claiming to support the treaty.

However, over the past week, the reports coming out of the treaty negotiations in Marrakesh have been consistent about one thing: the MPAA's influence over the US negotiators has been immense, and the US negotiators have been the single source blocking the completion of the treaty by arguing to gut the entire treaty, making it next to useless. They've fought against fair use. They've fought against exceptions to copyright. It's gotten so bad that even the mainstream press has picked up on the MPAA's direct assault on the blind. The Washington Post has an article all about the MPAA's attempts to block and change the treaty such that it is effectively useless.

But the treaty, years in the making, could be in jeopardy because of unresolved differences between advocates for the blind and the Motion Picture Association of America, which says the accord could undermine protections important for filmmakers, publishers and other major industries.

Of course, you might wonder why the MPAA is so concerned about a treaty for the blind, which is mostly focused on written materials, since that shouldn't impact the MPAA very much. The answer is what we've said for years: copyright maximalists will fight against any treaty that recognizes the rights of people to push back against maximalism through things like fair use. And the MPAA isn't even coy about this:

“What happens here could affect other future treaties,” said Chris Marcich, who is in charge of dealing with the negotiations for the MPAA and its international wing, the Motion Picture Association.

Yes, how dare the public have their rights supported during treaty negotiations about what they can do with works they own. Horrors.

The article also highlights that the MPAA was instrumental in getting the negotiators to drop more expansive fair use rights of the public included, insisting instead on only allowing the "three step test" from the Berne Convention included. As we've discussed in the past the three step test is merely one way in which a country can protect the public's rights to limitations and exceptions in copyright law, but maximalists like to claim it's the only way, because if you read it in the strictest sense, it severely limits fair use, because a use fails the "three step test" if it "unreasonably prejudices the legitimate interests of the rights holder." In other words, if the rights holder doesn't like it, no fair use for you. Amazingly, even this test is now not enough for the MPAA:

But the MPAA says the protections afforded by the three-step test are still too weak and wants them to be more effective. Moreover, Hollywood is strongly resisting language in the draft that mirrors the concept of “fair use,” long embodied in U.S. copyright law. Fair use says that copyright material can be used without permission in certain circumstances, such as for nonprofit educational purposes.

Related to all of this, KEI has received, via a Freedom of Information Act (FOIA) request, all emails between MPAA lobbyists and the negotiators from the USPTO (who are handling much of the negotiation). It's worth noting, by the way, that the key person at the USPTO (and the person addressed in many of these emails) is Shire Perlmutter, currently the Chief Policy Officer and Director for International Affairs at the USPTO, but prior to that was the Executive VP of IFPI (the international version of of the RIAA) and before that, was VP and Associate General Counsel for Intellectual Property Policy at Time Warner... a member of the MPAA when it owned Warner Bros.

Included in the documents is an incredible attack on fair use by the MPAA, sent in April of this year, just as the MPAA was insisting it wanted to help the blind, and at the same time that the MPAA's Ben Sheffner was, ridiculously, pretending that the MPAA was one of the world's biggest defenders of fair use. Yet, at the very same time, they were promoting a document that claimed the following about fair use:

As has been pointed out by various commentators, open-ended systems such as fair use under Sec. 107 US Copyright Act may raise issues with the three-step test, in particular the first and possibly third step.... Consequently, it is neither necessary nor would it be reasonable or desirable in view of the mentioned difficulties to include an express reference to fair use or fair dealing in the proposed instrument.

A specific reference to fair use or fair dealing could also be misleading for it could be understood as an invitation to implement the instrument in such a way, whether or not it sits well with the particular legal system of the Contracting Party in question. However, any wholesale introduction of a particular legal feature, be it fair use, fair dealing or a closed list, would be contrary to the intended effect of the discretion that Contracting Parties may exercise with regard to the way of implementing their treaty obligations....

At a time when the fair use doctrine is considered by many as a cure for all ills, this would clearly be the wrong sign....

Consequently, for all the foregoing reasons, the reference to specific ways of implementation such as fair use or fair dealing should be omitted from the proposed instrument.

These are the defenders of fair use? These are the folks who claim they're trying to help the blind? That's all a lie. And the quotes above are just a few. There are a lot more of that nature. The MPAA wants to screw over the blind out of a fear that people might realize that fair use and other rights of the public might just be more important than an artificial government monopoly system to inflate their bottom lines.

Later in the documents, you can see the cozy relationship between the key government players, Perlmutter and Justin Hughes (another well-known maximalist supporter, now in the government) and MPAA members and lobbyists. There's also a discussion about how three steps in Berne only applies to certain types of copyright rights (reproduction rights), but does not apply to other things like public performances, and how their wishes are to go even further and make sure the very limiting 3 steps applies to everything. It also shows that the US government, via Perlmutter and Hughes, helped propose back to the MPAA how they might achieve their goals in the agreement. In an email from Scott Martin at Paramount to Perlmutter:

I suggested to Justin the concept that I heard from both you and Karyn Temple Claggett: membership in the VIP Treaty be limited to countries that have ratified and implemented the WCT. Perhaps if there is resistance from non-ratifiers, the US/EU could then proposal a new Article Ebis that would apply only to countries which want to ratify the VIP Treaty but which have not yet ratified and implemented WCT.

Justin seemed intrigued by the idea and mused that perhaps the Japanese proposal for Article E could be expanded to cover this separate goal.

There are also cases where people, such as Time Warner employees, were sending language they wanted inserted directly to Hughes at his request. At one point, Hughes emails Bradley Silver at Time Warner with a simple request:

Could you just send me the whole language?

That was after Silver specifically asked Hughes to "tweak" the language in one section.

Basically, the documents make it abundantly clear that the MPAA is trying to keep fair use/fair dealing way out of the agreement, and then seeking to undermine things even further by putting in place an extreme version of the three step test -- a test that already goes way too far in limiting the public's rights to make use of works. It further shows that the MPAA's public stance that it's in support of a treaty for the blind is hogwash. It's in support of a treaty that strips away many of the rights for the blind.

Reader Comments

Last week we have leaks making the fact that the US spies on everybody and everything official. No surprises. Now we have another "leak" showing that the MAFIAA own the copyright policies of the US. Anyone surprised? Not me.

As despicable as the issue with the blind is, it's just a more visible tip of the iceberg that causes immediate outrage. And they feel hurt when we call them despicable mafia assholes...

Re: So...

No no, you're not thinking creatively enough, this is the perfect opportunity for some guilt free schadenfreude and twisting the knife on people that really deserve it.

As the US 'negotiators'(in actuality hollywood reps and everyone knows it) are the main stumbling blocks to getting this through, I'd find it absolutely hilarious if the other countries were to pass it as it was originally supposed to be, with fair use, exceptions for groups that need it like the blind, deaf and educators, and all that other fun stuff and just 'forget' to invite the US to the vote.

Sure that would mean that the US wouldn't be bound by the terms, but it's not like the US pays attention to treaty/agreement terms it doesn't care for anyway, so that wouldn't really be any different from what they'd have done in any case.

Re: Re: So...

Too late for that.. The U.S. and by extension the MPAA already has a stranglehold on the other countries' desision making when it comes to copyright law. It wouldn't make much difference if they weren't there to vote.

Monotonous Mike's one-note samba.

Re: Monotonous Mike's one-note samba.

Speaking of monotonous...

On a side note, you do realize that every time you dive in front to try and distract attention away from, or defend, the actions of the *AA's your claimed 'hatred' of big companies is shown to be a complete and total sham, right? For all the 'hatred' you proclaim you have for them, you certainly waste no time and effort defending every slimy thing they do(with the exception of Google anyway, who you appear to have a strange love/hate relationship, hating what you claim they do, but using their products anyway).

I started out believing that copyright has a place in the creative industries and that it just needed to be reformed.

Every day something happens to push me more and more toward the belief that copyright has no place and needs to be abolished completely. Organisations like the MPAA, RIAA and BPI are to blame for this.

Re:

FTA: "At the MPAA’s urging, negotiators have added language called a three-step test. In part, this could bar nonprofit groups from reproducing books in accessible formats if this interferes with a copyright owner’s chance to make money from the books as they would otherwise — for instance, by developing a future market selling to the blind."

the MPAA need to be taken to as high a court as possible, not just in the USA but world wide and charged with discriminating the disabled! they have no shame! their treatment of this section of the communities is atrocious!

This just shows why granting monopolies to anyone and then asking them for advice on how to write new laws is absurd.

People who get the monopoly if given the chance will do everything in their power to extend those monopolies even if it is harmful to themselves since most people grow to believe that a monopoly will protect them from everything, they are mistaken, pirates are a natural consequence of that line of reasoning, is the system trying to balance itself and so far after decades pirates have come up on top every single time.

Sad

I wonder what they are going to do when the blind and the deaf stop licensing anything with them and when they release works with no copyright attached, or when authors and musicians and others start releasing data free for those with severe disabilities, yes the big copyright controld studios and publishers will hang on to the copyright for their work, but when people ignore them and release their content with specific exceptions and allowing strong fair use and allowing people to ignore copyright laws.Well we are going to see what happens when musicians hopefully flock to megamusic when it is live to all,and hopefully the copyright czars will be shitting themselves as their artists leave them in droves.

What is also goign to be fun is to see torent sites creating the menas for the blind to gain access to more data, or the hard of heaing to have access to subtitles as they do now.

This treaty like most that the copyright industry has got their mitts into is probably not going to pass, and will again be a complete waste of time for those that have actually spent a lot of their time and energy to create a trade agreement that involves a lot more than what copyright maximalists want, what a waste of time and money.
Again i am hoping that all the treaty organizers at some stage decide that the mpaa is not welcome in talks and neither are their paid supporters.

Somewhat paying attention to the MPAA's blatant misuse of power concerning copyright matters and the Blind (and formerly Deaf) international treaty their latest despicable antics still riles feathers.

After already torpedoing any relief for the Deaf Treaty they still seem insistent on shelling the Blind treaty into smithereens. For what kind of relief? Relief from corporate copyright nonsense that should have never been legislated in the first place. Never.

As if this kind of physical and psychological need by the handicapped should ever have been left on the political sideline.

Lets be plain and simple. Fair Use is not good enough as it is. The MPAA wants to substitute something that is not good enough with silly exceptions? These weak allowances (exceptions) will likely later be marginalized and minimized because its written so arcane and complex the Deaf and Blind could never articulate it let alone the public at large.

Why? Because its easy to pass off the loss of an exception rather than a Right. For the Blind, Deaf or American public.

What is needed is that Fair Use be elevated greatly into Fair Use Rights. The word RIGHTS should be firmly and proudly included with the phrase Fair Use. It should be an act/bill all by itself. Its probably that important.

Why? Because if not then the individual “exceptions” will be whittled away and argued off as inconsequential. As they have been in the last 30 years or so. Currently, it seems, the MPAA has future plans to take/dispose/steal/theft/pirate the entirety of Fair Use (Rights).

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There are other issues of free speech derived through using, hopefully trusted, translations. It is actually imperative to ANYONE who reads foreign material/books/videos that they obtain a trusted translation. So may cuss words and other cultural essence are frequently edited away. Poof. Once the dirty words are rationalized out of the translation the reinterpretation does not stop there.

If your wanted to read about China would you trust the official version? No. Russia? No. Fox news? The NSA? hahaha. Its like listening to any administration official try to say this is good when its bad. (or vise a versa depending on what side is talking)

Even a real reliable news source can be mangled through a bad translation. Its normal.

The Deaf and Blind actually only want something so basic that the meddling of the MPAA only likely worsens their already ugly crime like legacy. But the MPAA is used to such scars and battle wounds already and wont be swayed by name calling.

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At no time in the present or in history can the MPAA involvement be called beneficial to the American Culture/public let alone such a vulnerable group as the Deaf and Blind. Every time they have sponsored legislation they have TAKEN from American Culture/people and now they want to crush more of the hopes and dreams of a handicapped community.

WHO CARES about movie producers. Screw them. In fact let me put it to them/they/idiots; Since copyright terms have been extended to almost in perpetuity (who cares if it expires a zillion years after we die)... What contribution have they ever made to American Culture that the public can actually legally use and enjoy?

The constant reduction of Fair Use (Rights)? It gets a little boring sometime doesn't it?

What bedtime stories do copyright maximalists tell their kids when they tuck them in at night. Do copyright faeries dance like sugarplums as they steal even their own kids culture, rights and privileges? Are they told the truth that they are not defending movies but surely stealing American culture?

Sing along now...A song we can never sing? A movie we can never perform skits from for our friends? A video we cannot back up? (its a mantra already)

On and on with the worthlessness abuses of copyright law not to begin to elaborate on performance rights (sic) law.

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“,Motion Picture Association of America, which says the accord could undermine protections important for filmmakers, publishers and other major industries. “ Cant see what they are talking about. Nothing so far written in both the Deaf and Blind treaties bothers even a canary.

“Hollywood is strongly resisting language in the draft that mirrors the concept of “fair use,” long embodied in U.S. copyright law.” To bad. Go home and stop causing damage with your no helping policy.

“,it is neither necessary nor would it be reasonable or desirable in view of the mentioned difficulties to include an express reference to fair use or fair dealing in the proposed instrument.” Wrong. It IS necessary. Probably for the exact reasons the MPAA claims it isn't. Fair Use IS the point.

“At a time when the fair use doctrine is considered by many as a cure for all ills, this would clearly be the wrong sign.... ” Wrong again. It would absolutely be the right sign. The MPAA will never understand this in their selfish game of market domination but what does a Deaf or Blind person care about their unlimited ambitions? Its obviously fooled the average American Already its possibly expected of them to try and push it on the handicapped and helpless.

“Consequently, for all the foregoing reasons, the reference to specific ways of implementation such as fair use or fair dealing should be omitted from the proposed instrument.” Wrong even again. The Fair Use and Fair Dealing must be included to produce a clear document that can be understood by the average Blind or Deaf person.

Of course the MPAA's obvious policy has been to create totally obfuscated and complex law that only they can decipher.

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MPAA; Your cause is just not credible enough. Your organization is certainly damaging the reputation of the US consulate, American values and culture.

How much/many campaign contributions were necessary to compromise a good and done deal?

The MPAA seems to act more like a criminal enterprise than any sort of reputable entity. Fear Uncertainty and Doubt seem to be the best from them.

Yes it seems that the past several US administrations have been enamored with the MPAA's money and movie glitz. They have mistakenly/unwisely appointed copyright expansionist sympathizers into government including lawyer and other positions.

This tack might supposedly will lead some legitimacy to the theft of American Culture but how long can that last? Administrations come and go.

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There is NO WAY the MPAA can be a defender of Fair Use Rights. None. If they have claimed so at any time in the past or future it is almost certainly a lie. The National Federation for the Blind (NFB) must still be hurting from the likely attack/bruising/ambush earlier.

The MPAA does not get it that the treaty for the Blind (and hopefully the Deaf will not be tossed on the wayside) IS and expansion of Fair Use (Rights). Thats the bottom line. The name of the game.

For the MPAA to waltz in and dictate a complete turnaround and make the treaty for the Blind a worthless piece of paper and waste all the years of goodwill and time invested into it is unspeakable horror.

Re:

Unfortunately, I'd say that there was no "attack/bruising/ambush" on the NFB. Motion picture producers have probably been consistently in bed with NFB people since Jules Stein set up his charity for the blind all those years ago.

This is as bad as, if not worse than, the item over at CNN from two of the founding members of Pink Floyd saying how unfair the legislation regarding streaming radio (e.g. Pandora) is to them.

How much more can you rip off the blind and deaf communities, not to mention the artists who will never see pennies, or people who want to pay a fair and reasonable price to see/hear/read the work they want to when they want to?

There is a song we can never sing...at least in a public place, like a restaurant. You know, that one for a festive occasion we celebrate upon the anniversary of the birth of a friend/spouse/child, etc.

How dare the public demand representation from government officials!!! We pay good money for disproportional representation and we demand to get what we pay for, a government that only represents us!!!!!!